Jaxton Manufacturing Corp.

JAXTON MANUFACTURING CORPORATION 465 in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 7. By the foregoing conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, .and has thereby engaged in unfair labor practices within the meaning of Section .8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] .Jaxton Manufacturing Corporation and United Brotherhood of Carpenters and Joiners of America, AFL-CIO.' Case No. 3-CA-1426.2 February 17, 1961 DECISION AND ORDER . On June 7, 1960, Trial Examiner George J. Bott issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto, and finding that it had not engaged in certain other unfair labor practices and recommending dismissal of the complaint pertaining thereto. Thereafter the Respondent filed ,exceptions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members ,Jenkins and Kimball]. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications and additions: 1, Barrows, Ball, Sweet, Pedersen, and Twiss : We agree with the Trial Examiner that the Respondent had knowledge of the attempted attendance at a union meeting of Barrows, Ball, Sweet, Pedersen, and Twiss and that they were discharged because of that activity. We further agree with the Trial Examiner that the alleged "readjust- ment" and attendant reduction in the work force, and the claimed temporary status of Twiss, propounded as defenses by the Respondent, are mere pretexts, 1 Hereinafter referred to as the Union. 2 This ease was originally docketed as Case No. 2-CA-6915. 130 NLRB No. 36. 597254-61-val. 130-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the close of the workday on September 29, 1959, the Union dis- tributed written announcements of a meeting to be held that evening at the union hall which is situated on Jay Street, a dead end street in Glens Falls, New York, in which city the Respondent's plant is located. The announcements were distributed at two of the three exits from Respondent's plant. Shortly before 8 p.m. that evening, Sweet, Barrows, and Ball were gathered in front of the post office at the entrance to the aforementioned dead end street, preparatory to going to the meeting, when Leslie Klein, the son of the Respondent's owner, arrived at the post office and engaged in what the Trial Ex- aminer found to be legitimate business. Klein spoke briefly to the three employees, entered the post office, left, spoke to them again, and went to his car in the adjacent parking lot. A few minutes after, Sweet, Barrows, and Ball crossed Jay Street to join Pedersen and Twiss who had just parked their car on Warren Street. The five started up the dead end street toward the union hall. They had reached a point opposite the post office parking lot when they decided against going to the union meeting and immediately returned to the post office, where Barrows entered to call the union business agent while the others remained at the entrance to the post office. Klein necessarily had to retrace his course and drive past the post office when leaving the parking lot. Pedersen and Twiss testified that they saw Klein's automobile as he drove down Jay Street toward Warren. The next day, Wednesday, September 30, 1959 Sweet, Barrows, and Ball were terminated, and on the following day, October 1, 1959, Pedersen and Twiss were also terminated 3 When the discharges oc- curred, late in the afternoons of September 30 and October 1, 1959, the immediate supervisors were apparently without knowledge of the reasons therefor. Accordingly, Barrows and Sweet went to Milton Klein, Respondent's owner, to protest and Klein told them that he did not think that they were happy at Respondent, that they should get a job where they would be happy. Barrows then asked Kline if the reason for the discharges was the episode at the post office, to which Klein replied that if she knew, why ask. The day following his discharge Ball pleaded with Milton Klein for his job and was told by Klein that anyone who is not happy should work elsewhere. Klein then accused Ball and his mother, Barrows, of being at the union meeting, which Ball denied. Klein said that Ball was an innocent bystander. Ball returned to work the following Monday, October 5, 1959. Subsequently, Zweibelson, an admitted supervisor, asked Ball why he had gone to the union meeting. It is significant to note that in all of the above-credited testimony, there is no mention of a readjustment or reduction in work force and 8 Ball was rehired on October 5, 1959 , and Sweet and Pedersen were also rehired on October 12, 1959. JAXTON MANUFACTURING CORPORATION 467 that all five employees involved in the abortive union meeting were discharged within 48 hours, even though within the middle of a pay period. Within this framework of facts, the Respondent contends that Twiss had been hired as a replacement for a sick employee (Aldrich) and was discharged when Aldrich returned to work, and that the dis- charges of Barrows, Ball, Sweet, and Pedersen were occasioned by a reduction in force necessitated by a "readjustment." The record reflects that while Twiss was allegedly discharged due to the return to duty of Aldrich, Twiss was hired about 6 weeks after Aldrich was incapacitated and was never told he was a temporary re- placement. Furthermore, a new employee had been hired on the same job before Twiss, and another new employee afterward. Although Milton Klein, Leslie Klein, Zweibelson, and Palangi, all officers of the Respondent, testified at the hearing, no explanation for the "readjustment" was given despite the fact that they were spe- cifically asked for such explanation. Moreover, despite the alleged need for a "readjustment" and reduction in work force, the Respond- ent's work force increased in size from 124 the week ending September 24, 1959, to 125 the week ending September 30, 1959 (when the dis- charges occurred), to 129 the week ending October 7, 1959. In view of all the foregoing, and most particularly in light of the sequence of events : the precipitous nature of the Respondent's dis- charges (within less than 48 hours after the abortive union meeting) ; the fact that the discharges were effected in the middle of the pay period rather than, as would be normal, at the end thereof; and the fact that the five employees present at the scene of the union meeting were all discharged and apparently were the only employees affected by the "readjustment" we find that the Respondent had knowledge of the attempt to attend the union meeting by Barrows, Ball, Sweet, Pedersen, and Twiss, and that the Respondent discharged them be= cause of that activity in violation of Section 8(a) (3) and (1) of the Act. 2. Albert Griffin and his wife, Blanche Grign: The Trial Examiner found that the Respondent discharged Albert Griffin because it be- lieved that he had engaged in concerted activities protected by the Act, particularly in urging other employees to attempt to get wage increases. He also found Mrs. Griffin's discharge a violation of the Act since it was based solely on her husband's discriminatory dis- charge. We do not agree. We perceive no necessity for determining whether Griffin was dis- charged for the reasons alleged in the complaint or for those given by the Respondent and fully discussed in the Intermediate Report. As- suming that Griffin was discharged because he attempted to induce other employees to get raises, as the complaint alleges, there is no evi- 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dence in the record that Griffin talked to employees in groups or that he attempted to persuade them to exert pressure collectively. In short, there is no evidence that Griffin's activities were in anywise concerted or that they were otherwise protected by the Act. Furthermore, the record is devoid of any evidence that the Respondent believed, or had reason to believe, that these activities were either concerted or other- wise protected. Accordingly, we shall dismiss the complaint insofar as it pertains to the discharge of Albert and Blanche Griffin. REMEDY As we have found that the Respondent engaged in unfair labor practices in violation of Section 8 (a) (3) and (1) of the Act, we will order that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We will order that Respondent offer Ethel Barrows and Richard Twiss immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earn- ings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination against them to the date of the offer of reinstatement, and in a manner consistent with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. Since Frank Ball, Marie Pedersen, and Barbara Sweet were re- instated after the discrimination against them we will not order that Respondent offer them reinstatement but only make them whole as in the cases of the other employees set forth above for wages lost from the date of discrimination to the date of reinstatement. We will also order that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of backpay. We will also order, in view of the nature of the unfair labor prac- tices the Respondent has engaged in, that it cease and desist from in- fringing in any manner upon the rights guaranteed employees by Section 7 of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Jaxton Manu- facturing Corporation , Glens Falls, New York, its officers, agents, successors , and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Brotherhood of Carpen- ters and Joiners of America , AFL-CIO, or in any other labor organi- JAXTON MANUFACTURING CORPORATION 469 zation of its employees, by discharging, laying off, refusing to reinstate, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment, except as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a con- dition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act : (a) Offer to Ethel Barrows and Richard Twiss immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them and Frank Ball, Marie Pedersen, and Barbara Sweet whole for any loss of pay they may have suffered by reason of Re- spondent's discrimination against them, in the manner set forth in the Intermediate Report attached hereto as modified by the remedy in our Decision and Order herein. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of this Decision and Order. (c) Post at its plant at Glens Falls, New York, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by Respondent or its representatives, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) File with the said Regional Director within 10 days from the date of this Decision and Order a written report setting forth in detail the steps which Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint that the Respondent engaged in surveillance in violation of Section 8(a) (1) of I In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, and discriminated against Albert and Blanche Griffin in violation of Section 8(a) (3) and (1) of the Act be, and they hereby are, dismissed. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL offer to Ethel Barrows, and Richard Twiss, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them and Frank Ball, Marie Pedersen and Barbara Sweet whole for any loss of pay suffered as a result of the discrimination against them. WE WILL NOT discourage membership in United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other labor organization of our employees, by discharging, laying off, refusing to reinstate, or in any other manner discriminating against them in regard to their hire, tenure of employment, or any term or condition of employment except as authorized in Section 8 (a) (3) of the Act as amended. WE WILL NOT in any other manner, interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. JAXTON MANUFACTURING CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed the General Counsel of the National Labor Relations Board, through the Regional Director for the Second Region (New York, New York), issued a complaint dated November 30, 1959, alleging that Jaxton Manufac- turing Corporation , herein called the Respondent or the Company, had engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended. The answer of the Respondent admitted certain allega- tions of the complaint but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held before the duly designated Trial Examiner at Glens Falls, New York, on February 29 and March 1 and 2, 1960. All parties were represented at the hearing and were afforded opportunity to adduce evidence, to JAXTON MANUFACTURIN,J, CORPORATION 471 examine and cross-examine witnesses, to present oral arguments, and to file briefs. Respondent and General Counsel argued orally at the hearing but briefs were not filed. Upon the entire record in the case 1 and from observation of the witnesses, I make the following: FINDINGS of FACT 1. THE BUSINESS OF RESPONDENT Jaxton Manufacturing Corporation is, and has been at all times material herein, a New York corporation with its principal office and place of business in Glens Falls, New York, where it is engaged in the manufacture, sale, and distribution of wood, metal, plastic and glass gift wares, and related products. During the year ending May 31, 1959, Respondent, in the course and conduct of its business operations, caused to be manufactured, sold, and distributed at its Glens Falls plant, products values at in excess of $795,000 of which products value in excess of $350,000 were shipped from said plant in interstate commerce directly to States of the United States other than the State of New York. The Respondent admits, and I find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Surveillance Respondent had never experienced a union attempt to organize it prior to Septem- ber 1959. On September 29, 1959, Allen Flewelhng, business agent of a local of the Union distributed to the employees of Respondent, as they were leaving work, union leaflets announcing a meeting of the Union for 8 p.m. that night at 17 Jay Street, Glens Falls. Flewelling went to the union hall that evening but only one employee, Barbara Sweet, appeared and she left immediately. About 8:15 p.m. Flewelling received a telephone call from employee Ethel Barrows and as a result he left the hall and went to meet Barrows at a tavern in Glens Falls called .the Brick Manor. He testified that when he left the hall he was followed by a person in a Buick who he subsequently learned was Leslie Klein, son of the owner of Respondent. The telephone call which caused Flewelling to leave the hall grew out of the fol- lowing incidents which are alleged in the complaint, as amended at the hearing, to be acts of surveillance. Ethel Barrows and her son, Frank Ball, who are alleged discnminatees in the instant case, worked for Respondent on September 29, the date of the alleged surveillance. Barrows' son picked up one of the leaflets dis- tributed by the Union that day and brought it home to his mother who, after checking with Flewelling to find out if the meeting was open to women employees, decided to attend. Mrs. Barrows telephoned employee Barbara Sweet who agreed to go with her to the meeting. Employee Marie Pedersen found a union leaflet on her car when she left work on the 29th and called Barrows from employee Twiss' home to find out if Barrows was going to the meeting. She agreed to meet Barrows in front of the post office near the union hall at about 8 p.m. Barrows and her son, Frank Ball, went to the post office, arriving at about 7:50 p.m., and waited for Sweet. Sweet arrived and the three stood talking in front of the post office on Warren Street. In a few minutes Leslie Klein appeared and entered the post office. He reappeared in a few minutes, spoke to the three employees, made some innocent remark about the weather, turned the comer to Jay Street on which the post office parking lot is located and disappeared. A few minutes later Marie Pedersen and Richard Twiss arrived in a car and parked. Barrows, Ball, and Sweet walked over to the car and advised Pedersen and Twiss that Klein had been seen. The employees then started down Jay Street, a dead end street, toward the union hall which is about 200 feet from the corner of Jay and Warren and reached a point across from the post office parking lot, which is in the rear of the post office, where they decided that, in view of Klein's presence in the vicinity and observation of the employees, they would not attend the scheduled meeting. 1 The General Counsel's motion to correct the transcript is hereby granted. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The five employees retraced their steps to the post office where Barrows made a telephone call to Flewelling as described above. The group then broke up, its mem- bers going in various directions. Barrows went to the Brick Manor Tavern where she was met later by Flewelling, apparently according to prearrangement. It is General Counsel's position that Respondent engaged in surveillance by arranging to have Lesile Klein in the vicinity of the union hall in order to observe who attended the meeting . General Counsel also contends that Klein , after leaving the post office, sat in his car in the post office parking lot from which vantage point he could watch anyone going down Jay Street toward the union hall and that he accomplished his purpose by observing the five employees as they walked toward the hall. Business Agent Flewelling testified that after he received the call from Barrows from the post office about 8:15 p.m. he left the hall and drove up Jay Street to Warren and that as he stopped for a red light at Warren a car pulled out of the post office lot and followed him and continued to follow him to the Brick Manor. General Counsel argues that Leslie Klein was in the car and that by such conduct Respondent engaged in an adidtional act of surveillance. I find- that General Counsel has not established by a preponderance of the evidence that Respondent engaged in surveillance either by watching the employees or fol- lowing Flewelling. Respondent's mail is delivered to a post office box at the post office and arrives three times a day. It was, and is, Leslie Klein's duty to pick up the mail. The evening mail arives and is distributed sometime after 7 p in. and it was, and is, Klein's practice to go to the post office between 7 and 9 p.m. for the mail, and take it home to his father, Milton Klein, president of Respondent with whom he lives. On September 29 he went to the post office, parked his car in the back of the building, and went into the building. On his way out he spoke to Barrows, Sweet, and Ball. He admitted that he knew they were employees but stated that he did not know their names. Klein then turned the corner to Jay Street, walked to the lot for his car and drove home. He denied that he sat in his car in the lot for any length of time after getting the mail and two of General Counsel's witnesses , Pedersen and Twiss , who arrived shortly after Barrows, Ball, and Sweet saw Klein leave the post office, testified that they saw a Buick that looked like the Klein Buick drive down Jay Street toward Warren immediately after they arrived at the scene. In view of the testimony of these witnesses , Klein's credited explanation of his presence at the post office and the lack of evidence that anyone saw Leslie Klein in the parking lot for any period of time, I am unwilling to draw an inference that Klein went to the post office or remained in the parking lot in order to observe those attending the meeting . Additional weaknesses are found in Flewelling's identification of Klein as the person who followed him in a Buick as he left the union hall. Flewelling had never seen Klein before and his identification of him was based on a view of the driver of the following car in his rear view mirror. It was dark at the time and I find that the identification has not been established .2 B. The alleged discriminatory discharges 1. Barrows, Ball, Sweet, Pedersen, and Twiss Five employees, namely, Barrows, Ball, Sweet, Pedersen, and Twiss, met, pur- suant to plan, to attend the union meeting at 8 p.m., September 29, 1959. All five were fired by Respondent; Barrows, Ball, and Sweet on the very next day; and Pedersen and Twiss on October 1. Respondent's position is that Barrows, Ball, Sweet, and Pedersen were laid off because of an adjustment in the labor force and Twiss because he-had been hired as a replacement for an employee who was off because of illness but was due to return. Respondent points out that Ball was re- instated almost immediately, Sweet and Pedersen by the 12th of October, and that Barrows ignored a message sent through her son Ball that she might be reinstated if she came to the plant to see Mr. Milton Klein, president of Respondent. I find that the Respondent discriminated against the five named employees because Respondent believed that they had attended a union meeting on September 29. Respondent's business is highly seasonal and its employment complement ranges over the year from about 50 to about 125 employees. As of September 30, when Sweet, Barrows, and Ball were laid off, 125 employees were employed and on October 7, while Sweet, Barrows, Twiss, and Pedersen were still unemployed, Re- spondent had 129 employees. It appears, therefore, that at the time of discharges of the five employees in question Respondent was at its peak employment. In addi- 2 Quaker Markets Inc, Three, 108 NLRB 1299, 1310 JAXTON MANUFACTURING CORPORATION 473 tion, the record shows that in 1959 three-quarters of Respondent's gross volume of business was attributable to the last quarter of the year. Other factors also discredit Respondent's defense that an adjustment in the labor force at the time of the alleged discrimination adequately explains it. For example, on October 1 Respondent had some night operations going and was also working on Saturday. In addition ap- proximately 30 new employees were hired in September and October 1959. Of the 30 many were hired in the departments in which the discriminatees worked or were experienced. Sweet, Pedersen, and Barrows worked in assembly and Ball in sanding, and Respondent's employment records show that at least six persons were hired in assembly on October 2 or later and two in sanding. Richard Twiss worked as a router and employment records also discredit Respondent's contention that he was hired as a replacement for Aldrich who had been ill and was due to return in October. The records show that Aldrich became incapacitated on August 15 and that two routers were hired on September 9 before Twiss was hired so that it appears that Twiss could not have been a replacement for Aldrich. Moreover, two other routers were hired after Twiss was hired and before Aldrich returned indicating that Twiss' selection for termination was unconnected with Aldrich's return. Not only does Respondent's economic and employment picture at the time of alleged discrimination seriously weaken Respondent's defense but President Klein's own testimony in which he purported to explain the "adjustment" strains our cre- dulity. On direct examination he was able to say only that the business was seasonal, that employment fluctuated from time to time and that on or about September 29 or 30 "something occurred in relation to the management" of the business which in his judgment required a reduction in the work force Mr. Klein never became more specific and under cross-examination became more vague. When asked to describe the business conditions existing on September 30 or October 1, that ne- cessitated the layoff or discharge of Sweet, Barrows, Pedersen and Ball, he replied that it was a departmental adjustment. Asked to describe the "adjustment" he answered that, "There are times when there are shortages in supplies when certain lines are down, there are times when there are shortages in orders, and there are varying conditions too numerous to describe briefly which affect the hiring and the laying off of various personnel." Pressed by General Counsel to state which one of the possible reasons actually existed at the time of the layoff, he answered that there "may" have been a slackening of materials. Asked again if shortage of ma- terials was a reason he answered that, "It could have been more than one reason. It could have been a combination of reasons. Perhaps we didn't have cartons; per- haps we didn't have hardware, or perhaps we didn't have lumber, or perhaps we didn't have the orders, or perhaps a combination of all." I do not credit his ex- planation of the business reasons for the terminations or his explanation of his admitted inability to remember what reasons he had. He explained that he did not expect to be a witness and therefore kept no records. A matter important as the dis- charges in the instant case, which almost immediately became the subject of charges and investigations before and by the General Counsel of the Board, and in which Mr. Klein was personally involved, would be better remembered and better docu- mented from a business point of view if a reasonable explanation was available. I do not think one was. The inadequacies and weaknesses in Respondent's explanation of the "readjust- ment" which resulted in the loss of employment by the five employees who met to attend the meeting does not necessarily establish discrimination under the Act. The General Counsel, of course, has the burden of proving by a preponderance of the evidence that the discharges were illegal. It appears, however, that the timing of the discharges, after three of the group were admittedly seen near the union hall, in the light of the wholly unsatisfactory explanation of the discharges, taken with other evidence in the record compels the conclusion that the discharges were improperly motivated. Respondent's attitude toward the Union was one of intense opposition, shock, and disgust. Mr. Milton Klein made a speech to employees on October 8 in which he stated more than once that the Union would kill his business, and sound its "death knell." He ridiculed the union representative and an employee who had once shown an interest in a union and referred to another employee, obviously Barrows, as a beer drinking companion of Flewelling, the union business agent. Klein also promised to make the plant,a better place to work if the Union would stay away. The intensity of opposition demonstrated by this speech leads me to conclude that Mr. Klein reacted to his employees' interest in the Union by discharging them in conformity with his prediction to the employees in his speech to them, that if the law says he must have a union he would live with it, but that he was going to do everything in his power to prevent it. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Milton Klein and Leslie Klein testified that they had no knowledge of a union meeting on September 29. In view of Respondent' s interest in the Union and the distribution of leaflets in front of the plant on the 29th advertising a meeting I do not credit this testimony. I also find that Leslie Klein communicated to his father the fact that he had seen Barrows, Pedersen, Sweet, Twiss, and Ball near the union hall on the same evening. Leslie Klein admitted seeing three of the employees and I infer in the circumstances outlined above that he also saw Twiss and Pedersen and communicated that to his father. I also find, that whether or not he knew the em- ployees by name on the night of the union meeting that it was a simple matter to get this information at the plant the next day and identify the employees for his father's information. That Respondent knew there was a meeting planned, and that the employees were interested in it, finds support in other evidence in the record. For example Barrows and Sweet, after being notified of their discharges, protested to Milton Klein who told them that he did not think they were happy at Respondent and to get a job where they would be happy. Barrows asked Klein if the reason for the layoff was the "episode" in front of the post office the night before. Klein made no denial but merely stated that if she knew why need she ask. Frank Ball saw Milton Klein the day after his discharge and pleaded to be reinstated because he was getting married. Klein told him that anyone who was not happy should work elsewhere. Klein told Ball that he had heard that Ball and his mother we- ;nto the union hall but Ball protested that such was not the fact but that they were "only standing on the corner." Near the end of the conversation Klein remarked that Ball was an innocent bystander in the matter and promised to try to do something for him. Ball was reemployed on October 5. Shortly after Ball was reemployed Mr. Abraham Zweibelson, sometimes called Ab Elson, brother-in-law of Milton Klein and an admitted supervisor, asked Ball why he went to the union meeting. Milton Klein and Zweibelson denied the remarks attributed to them by Barrows, Sweet, and Ball. Klein asserted that in the meeting with him, Barrows and Sweet were considerably overwrought, spoke incoherently, and wanted to know why they were laid off. He advised them, he said, that it was part of a normal readjustment and that it was conceivably temporary. Klein admitted the remark about not being happy but explained it as being caused by Barrows' vituperation. To the accusation that the layoff was caused by the employees attending the union meeting he testified that he said merely that perhaps the employees knew something he did not. I do not credit Klein's version of the remarks at the meeting with Barrows and Sweet. It would seem, in the first place, that if the layoff was "conceivably temporary," as Klein said he told the employees, that either the immediate supervisors of the employees would have told them such when they were given their checks, which they did not, or Klein would have gone into more detail to pacify employees who had worked satisfactorily for him and had been suddenly laid off without explana- tion and were "overwrought." Klein admitted to being angry with Barrows but only, he stated, because she was abusive and because he felt he rated better treat- ment because he had given her, her son, and daughter employment at one time or another. The more logical explanation is that Klein was hurt and angry with Barrows because of her interest in the Union and because she had her son accompany her to the scheduled meeting, and I so find. Mr. Zweibelson admitted a conversation with Ball after Ball's return which is in accord with Ball's version except that he denied asking Ball why he went to the union meeting. I do not believe his denial. On cross-examination Zweibelson denied that he knew Ball had talked to Klein before he got his job back but on direct ex- amination he testified that, in a conversation with Milton Klein in which he suggested that Ethel Barrows be recalled, he made such a suggestion in view of the fact that Ball was being recalled. Mr. Milton Klein testified that Zweibelson in interceding for Barrows said, "I think if she comes in and gives you a hard luck story you will melt like you did with her son." Obviously Zweibelson knew from his relationship with his brother-in-law and his conversations with him that Ball had been to see Klein to ask for reemployment. This knowledge would logically support his sugges- tion to Ball, which he admits, that his mother go and see Milton Klein about her job. On the other hand, Frank Ball, a shy youth of 18, who was visibly impressed and embarrassed by the role of a witness, told an honest, if haling and disjointed story. I credit his testimony where it conflicts with Milton Klein and Zweibelson. In addition to the facts set forth above the following circumstances common in most part to the five employees in question support a conclusion that the discharges were discriminatorily motivated. No criticism was voiced by any management representative about the work or attitude of any of the five before the layoff yet, as stated above, a substantial number of employees were hired after the complainants JAXTON MANUFACTURING CORPORATION 475 were let go and a substantial number of employees who were hired after the com- plainants were retained . In addition no offer of a transfer to other work or night work was made to the five persons in question . Furthermore, an air of mystery and secrecy surrounded the so-called "readjustment"; it came as a complete surprise to the employees involved and even the immediate supervision seemed confused. For example, at about 4 p .m. on September 29, Forelady Nina Bates told Barrows to be on her toes because "they" were watching. About 20 minutes later Bates handed Barrows and Sweet their final paychecks saying as she did, that she was sorry, she did not know what it was all about but she had been told to do it . Similarly, when Marie Pedersen was let go Supervisor Meyer Warner told her he did not know what it was all about himself but that he just took orders. Bates and Warner were not called as witnesses by Respondent and there was no showing that they were unavail- able. The evidence with respect to their ignorance of the alleged factors involved in the layoff is of added significance in the light of Milton Klein 's testimony that he discussed the "adjustment" with supervisors in the departments involved , I do not believe that Mr. Klein consulted anyone about readjusting the staff for economic reasons but that the decision to lay the employees off was his alone and motivated by discriminatory considerations . I find on the basis of the whole record, and for the reasons set forth above, that Barrows , Sweet, Pedersen, Ball, and Twiss were discharged because of their interest in the Union and because Respondent believed they had attended a union meeting.3 As stated previously, Sweet, Pedersen, and Ball were reinstated within a very short time of their layoff but Twiss and Barrows have never been reinstated. Re- spondent denies that Barrows was discriminated against in the first instance and argues that she turned down an offer of reinstatement . I find that she did not and the facts in brief are these: After Barrows had her exit interview with Milton Klein she left his office and on her way out of the plant passed Leslie Klein . Feeling, as she did, that he had reported her to his father, she, in a short phrase, insulted him, his religion , and his mother. Word of this naturally got back to Milton Klein and Zweibelson, Klein's brother-in-law. When Frank Ball, Barrows' son, was quickly reemployed Zweibelson thought the mother would also return and he went to his brother -in-law and tried to get him to forget about Barrows' remark and call her back with her son . Two things are significant here. First, Klein never actually told Zweibelson to get word to Barrows to come back and, secondly, the "readjustment" seems to have been very flexible in that Ball was immediately returned after a plea for mercy and Barrows could have been returned if it suited Respondent's whim. In any event, Zweibelson took it upon himself to talk to Frank Ball , as set forth earlier in this report. He told Ball to have his mother come in and speak to Mr. Klein and, "I'm sure that everything can be patched up and she will come back to work ." This, in my view, was not an offer of reinstatement. It was conditional , at best, on an interview with Klein, it was never expressly authorized by Klein and it was not communicated directly by Respondent to the discriminatee . When Ball told his mother about his conversation with Zweibelson that evening he told her that he and Zweibelson had been talking about the Union and Zweibelson said, "If you would go into Mr. Klein and ask for your job back like I did that you would get your job back." Mrs. Barrows replied she was not going back unless she was called back and her position was legally proper in the Trial Examiner's view. She had been fired illegally and a direct and unequivocal offer of reinstatement was owing her, uncoupled to an interview, and out of the context of her son's and her own union activity. 2. Albert and Blanche Griffin Albert and Blanche are husband and wife and worked for Respondent up to October 1 , 1959, when both were discharged. It is General Counsel 's theory that Albert Griffin urged other employees to seek raises in pay thereby engaging in concerted activity, or that Respondent believed that he had, for which the Respondent fired him. He contends that the timing of the discharge , coinciding with the dis- charges of the group which was bent on attending the union meeting, lends support to a theory that Respondent was trying to nip all agitation in the bud and thereby destroy any incipient unionism among its employees . He concludes that since Mrs. Griffin was fired as a consequence of her husband's illegal discharge her dis- charge is also a violation of the Act. 9I. C. Sutton, Sr. d/b/a I. C. Sutton Handle Factory, 125 NLRB 1094; Shovel Supply Company, 118 NLRB 235. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Albert Griffin was hired by Respondent in August 1959 as a sprayer in the paint department and his wife was employed on September 2 as a packer. About 2 weeks after Mr. Griffin went to work he was given a 10-cent per hour increase . When he was fired on October 1 Mr. Palangi, personnel manager, told him, according to Griffin, when asked by Griffin for a reason for the discharge, that "for one thing you got a raise and have been broadcasting around the shop and it has caused too much trouble." Griffin testified that Palangi added that he was sorry but that the matter was just something that had gone over his head to Mr. Klein and that he could not do anything about it. Griffin told Palangi that since he was being fired he supposed that his wife would be let go. Palangi told him that such was the general idea. Mrs. Griffin was then fired on Palangi's orders. Mr. Palangi admitted that about a week or 10 days after Griffin got his raise he received many complaints from supervisors about Griffin "telling everybody about getting a raise and they should do likewise, they should speak up." Palangi called this to Griffin's attention and told him that personnel matters should be kept con- fidential. According to Palangi the reports about Griffin were that he was telling everybody not to be afraid but to speak up and ask for raises as he did. Palangi denied that he mentioned Griffin's conduct in relation to the raise when he discharged Griffin but stated that he told Griffin that he had many complaints about him taking too many smoking breaks and being uncooperative. Palangi, on the other hand, admitted that one of the reasons he laid Griffin off was because he had talked to other employees and urged them to seek raises. He stated that such reason was not the primary reason but was only one of an accumulation of reasons such as the smoking breaks and uncooperativeness. Palangi explained Mrs. Griffin's discharge as being caused by Mr. Griffin insisting that she could not work there if he left. I find, even on the basis of Anthony Palangi's testimony alone, that Respondent discharged Griffin because it believed that he had engaged in concerted activties protected by the Act. Palangi admitted that one of his reasons for discharging Griffin was the manner in which he had informed other employees about his raise. He stated that it had been done belligerently but the term was never explained nor was evidence introduced to illustrate the belligerency. I find that Respondent was concerned, not about Griffin divulging his raise but urging other employees to go and do likewise. A discharge motivated in part because of such activity is a violation of the Act and I so find. Since Mr. Griffin's discharge was in violation of the Act Mrs. Griffin's discharge solely on the basis of his termination, is likewise a violation and it is so found.4 In addition, I find, contrary to Palangi's testimony, that Respondent's belief that Griffin had urged other employees to seek raises was the primary reason for his discharge and that, on the other hand, the admitted extra smoking breaks he took and his asserted uncooperativeness had little or nothing to do with the decision to fire him but were mere pretexts to conceal Respondent's real motive. In making such findings I credit Griffin's version of his conversation with Palangi on the day he was discharged to the effect that Palangi told him that he had been broadcasting his raise around the shop and it had caused trouble and that in essence President Klein had made the decision to fire Griffin. Palangi did not deny the remark attributed to him by Griffin about Respondent's president, Mr. Klein, but, on the other hand, testified that he also told Griffin that his layoff was also caused by curtailment of activities in the departments Earlier in the report, in the discussion of the discharges of the employees who planned to attend the union meeting, I dis- cussed the Respondent's defense of an adjustment in staff based on economic reasons and discredited it. I do not accept it here in reference to Griffin's layoff either and Respondent's use of it with respect to him also indicates to me that it is an after- thought. Neither do I believe that the additional smoking breaks or alleged unco- operative attitude of Griffin motivated Respondent. Palangi testified that he in- tended to promote Griffin at some time to the supervisory level and that Griffin's indiscretion in divulging his raise was an impropriety of a potential management candidate. It would seem that if the same candidate had been taking too many breaks or was uncooperative it would have been brought to his attention by Palangi who was sponsoring him It never was and I find, therefore, that these alleged derelictions are also pretexts. In addition Palangi. in his testimony, said nothing about Griffin urging employees to slow down, yet Mr. Klein testified that that too was a reason for Griffin's discharge If such had occurred it seems logical that Griffin would have been reprimanded but he was not Respondent's straining for ' Salt River Valley Water Users Association, an Arizona Corporation. 99 NLRB 1849. 853, enfd as mod 206 F. 2d 325 (C A 9) ; Bakersfield Foods Co, Inc - 123 ATLRB 1130. JAXTON MANUFACTURING CORPORATION 477 reasons to justify its discharge of Griffin is further evidence that Respondent was primarily concerned about Griffin's agitation of fellow employees about a raise. Mr. Klein testified that Griffin seemed "hostile" and that, among other things, Griffin was let go in the adjustment of the staff. I find and conclude that Respondent's belief in Griffin's "hostility" was based on its belief that he had urged employees to seek wage increases, that Respondent, consequently, considered him a threat to its unorganized plant and fired him along with the other employees whom it thought had attended the union meeting in order to eliminate all known union sympathizers actual or potential. I find further that such discharge for concerted activities in the context of the union activity which was underway was a violation of both Sec- tion 8 (a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and, such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent offer Ethel Barrows, Richard Twiss, Albert Griffin, and Blanche Griffin immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination against them to the date of, the offer of reinstatement, and in a manner consistent with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. Since Frank Ball, Marie Pedersen, and Barbara Sweet were reinstated after the discrimination against them it will not be recommended that Respondent offer them reinstatement but only make them whole as in the cases of the other employees set forth above for wages lost from the date of discrimination to the date of reinstate- ment. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of backpay. It will also be recommended, in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any man- ner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Ethel Barrows, Frank Ball, Marie Pedersen, Barbara Sweet, Richard Twiss, Albert Griffin, and Blanche Griffin, thereby discouraging the free exercise of the rights guaranteed by Section 7 of the Act and discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in surveillance as alleged in the complaint as amended at the hearing. [Recommendations omitted from publication.]